Submitted September 28, 2018.
Yamhill County Circuit Court 17CR04970, 17CR22754. John L.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Zachary Lovett Mazer, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh Shah, Assistant Attorney General, filed
the brief for respondent.
Armstrong, Presiding Judge, and Shorr, Judge, and Landau,
Summary: Defendant was convicted of various crimes in two
separate cases and sentenced to probation. On appeal of the
resulting judgments, he assigns error to the imposition of a
special condition of probation in one of the cases that
prohibits him from consuming or possessing marijuana. He
contends that the condition violates ORS 137.542(2), which
provides that the conditions of supervision of a person who
holds a medical marijuana registry identification card must
be imposed in the same manner as those related to
prescription drugs. The state concedes that the trial court
erred in imposing the condition without making the necessary
factual determination. Held: Because the challenged
special probation condition appeared for the first time in
the judgment, defendant did not have an opportunity to
address whether he held a registry identification card, thus
triggering ORS 137.542(2). Accordingly, the case must be
remanded for resentencing for the trial court to make that
determination and, if so, to modify the condition to comply
with the statute.
Or.App. 603] In Case No. 17CR22754, remanded for
resentencing; otherwise affirmed. In Case No. 17CR04970,
appeal dismissed as moot.
Or.App. 604] ARMSTRONG, P. J.
consolidated appeal, defendant appeals judgments convicting
him of two counts of fourth-degree assault and one count of
strangulation (Case No. 17CR22754) and two counts of menacing
(Case No. 17CR04970). In each case, defendant was sentenced to
probation. Defendant's sole assignment of error relates
to the trial court's imposition of a special probation
condition on his counts of conviction in Case No. 17CR22754
that defendant "not consume or possess * * *
marijuana." Defendant contends that such a complete
ban on the consumption and possession of marijuana is
prohibited under ORS 137.542(2) and requests that we strike the
challenged probation conditions from the judgment, or,
alternatively, modify the erroneous conditions to allow the
use of medical marijuana. The state concedes that the trial
court erred in imposing the conditions as it did, but points
out that ORS 137.542(2) does not apply in all
circumstances-that is, it does not apply where the defendant
is not a medical marijuana cardholder-and,
therefore, that we should remand for resentencing for the
trial court to make that factual determination. We agree with the
parties recognize, and as we have recently held, the effect
of ORS 137.542(2) is that a special probation condition
regarding marijuana use must contain an [295 Or.App. 605]
exception for marijuana use that complies with Oregon's
medical marijuana laws, if the probationer holds a medical
marijuana registry identification card. State v.
Jerscheid, 294 Or.App. 564, 566, ___P.3d ___(2018);
see also State v. Rhamy, 294 Or.App. 784,
431 P.3d 103 (2018) (accepting state's concession that
trial court erred in imposing unqualified prohibition on
defendant's ability to participate in Oregon's
medical marijuana program in the absence of necessary
determination). Because the special probation conditions at
issue here appeared for the first time in the judgment,
defendant did not have an opportunity to address that
issue. Accordingly, we remand for resentencing
for the court to determine whether defendant holds a medical
marijuana registry identification card, thus triggering the
statute. If so, the court shall modify the special conditions
to comply with the statute. See Rhamy, 294 Or.App.
at 785 (remanding for resentencing where court failed to make
determination necessary under ORS 137.542(2) to impose
unqualified prohibition on defendant's participation in
Oregon's medical marijuana program); cf. State v.
Mack, 156 Or.App. 423, 429, 967 P.2d 516 (1998)
(remanding for resentencing for court to determine whether
conditions supporting imposition of sex-offender package
under ORS 137.540(2) were established).
No. 17CR22754, remanded for resentencing; otherwise affirmed.
In Case No. 17CR04970, appeal dismissed as moot.
 In both cases, the convictions were
based on defendant's guilty pleas, and other charges were